The competition regulator has confirmed it is considering requests to investigate whether ice-cream maker
Ben & Jerry’s
has breached the Australian Consumer Law during its recent “Scoop Ice-Cream, Not the Reef" tour.

It is understood the Australian Competition and Consumer Commission has received multiple complaints about the assertions made by Ben & Jerry’s in a campaign along the east coast of Australia that was aimed at fuelling community rancour over dredging at the Abbott Point coal terminal.

The regulator confirmed on Tuesday it would “consider the matters raised", although it was unable to confirm the specifics of the complaints. “As a general comment, we note that the Australian Consumer Law contains general prohibitions against businesses from making false, misleading or deceptive representations to consumers," an ACCC spokesperson said.

Throughout April Ben & Jerry’s vans toured cities up and down the east coast offering free ice-creams to those interested in saving the Great Barrier Reef.

The tour’s message was informed by, and run in co-operation with, the conservation organisation WWF.

WFF is in the midst of a major fund-raising effort to pay for a campaign to protect the reef and prevent the growth of the Australian coal industry. This effort, in turn, contributes to a brilliantly organised anti-coal campaign managed globally by 350.org.

The latest success in this hydra-headed pitch is the decision by the world’s biggest single investor in resources, BlackRock, to support a new set of FTSE indices that will exclude companies that extract or explore for fossil fuels.

Coal industry under fire

Related Quotes

Company Profile

The Financial Times has reported this as a first in the blackguarding of the coal and petroleum sector by the investment mainstream. Certainly it has stunned the diggers and drillers.

But back to the issue at hand. The immediate issue here for Ben & Jerry’s is that WWF can pretty much say what it likes about the dimensions and quality of the risks facing the reef because its activities do not fall under the auspice of the Australian Consumer Law.

But Ben & Jerry’s is an ice-cream seller so it is subject to a thoroughly different level of legal obligation to sustain truth in the pursuit of its commercial interest.

On Tuesday, after the ACCC had confirmed its interest in the matter, the Queensland Liberal Senator-elect,
Matthew Canavan
, added his name to those seeking regulatory assessment of the “Reef Scoop Tour".

“I do not dispute Ben & Jerry’s right to campaign on the political issues of their choice, but they have a legal obligation in Australia not to engage in misleading and deceptive conduct while engaging in trade and commerce," Canavan wrote in a letter to ACCC chairman
Rod Sims
.

The way Canavan sees it, there can be no question Ben & Jerry’s was “engaging in trade and commerce during its Reef Scoop Tour" because “the primary purpose of the tour would appear to be promotional rather than political".

Given the ACCC accepts this threshold has been crossed, then Canavan maintains the corporate cop has no alternative but to consider whether the ice-cream maker has made statements about the reef that “mislead or deceive or are likely to mislead or deceive".

“For instance", Canavan wrote, “Ben & Jerry’s state ‘the Reef is at serious risk from intensive dredging, mega-ports and shipping highways.’ These statements are not true."

He noted that Abbott Point will not involve intensive dredging, that it will not be a mega-port “any time soon" and offering numbers that demonstrate the comparatively marginal impact that the port’s growth would have on the number of ships using the reef’s shipping channels.

Claims disputed

Canavan’s letter is heavy in detail. It identifies that the Abbott Point dredging will produce “just 3 million cubic metres of materials" and that compares to the 52.5 million cubic metres that has been approved for dredging in the Great Barrier Reef Marine Heritage Area in the past five years.

“There is no evidence that such a small amount of dredging (to be placed in an area that is just 0.0005 per cent of the Great Barrier Reef area) would pose a “serious risk" to the reef," he wrote.

Canavan’s numbers also challenge the idea that Abbot Point’s expansion will transform the reef into a shipping superhighway.

He noted that there were 4500 ship movements through the Great Barrier Reef last year. Abbot Point accounts for just 174 of them. And even if all of the proposed terminals at Abbot Point are developed (and they will not be), it will still contribute less than 2000 ship movements per year by 2032.

“I note that the commonly accepted interpretation of misleading and deceptive conduct requires that unless a person has reasonable grounds for making a representation then it is taken to be misleading," Canavan advised the ACCC. “I believe that a reasonable person would be deceived, or would likely be deceived, by the above statements because they have not been qualified sufficiently with the facts that I have highlighted above.

“In sum, Ben & Jerry’s do not have reasonable grounds to make the above representations," he concluded.

Newmont-Barrick mergerThe recovered and bitter enmities exposed by the collapse of merger talks between Canada’s
Barrick Gold
and
Newmont Mining
of the US probably says all we need to know about the cultural unsustainability of the idea in the first place.

The first thing to note about a proposition that would have pitched a mighty big rock into the comparatively small pool that is global gold is that this was one of few deals in gold underpinned by the potential of materially valuable synergies.

The second is that the public airing of the deal under construction might well have generated unstoppable momentum for others seeking step-change through acquisition in the gold sector.

And that might well see a focus fall on Australia’s slightly tarnished member of the world’s gold majors,
Newcrest
. Interestingly enough, the potential of a structural shake-up in big gold has been quietly anticipated by Newcrest.

The company is said to have strengthened an already mandated defence team with additional external advice at the mid-point of 2013 when its share price fell below $10 a share.

One of the few certainties at the big end of gold town is that the only way Newcrest will be drawn into any consolidation games will be as a target rather than a predator. What Newcrest’s three bigger North American cousins might do now is a subject of much less certitude.

Barrick is the product of predation but the imminent departure of its founder and chairman,
Peter Munk
, leaves room for sensible debate over the path the company will follow now.

Newmont, on the other hand, is said to covet recovery from Canada of claims to be the world’s biggest gold company and current progress would suggest that is going to require a takeover or two.

And then there is
GoldCorp Inc
, which is arguably the most aggressive of the bigger three and which recently lost out in a hostile tilt at Quebec’s Osisko.

To digress, in one of his final interviews as Barrick chairman, Munk reflected on the disappointment of the damage wrought by the 2011 diversification into copper through the $US7.6 billion takeover of Equinox.

There is a deliciously quirky Australian angle to the disappointment that was the Equinox acquisition. In 2010 the dual-listed Canadian paid $1.26 billion for an Australian-listed copper company called Citadel. It’s only asset of importance was a sizeable copper prospect in Saudi Arabia.

Nearly four years on, it remains a prospect yet as a long-standing Saudi resistance to the hard rock mining industry has played out in the country enforcing a ban on the use of explosives at the Jabal Sayid project.

Which brings us back to where we started, takeovers and culture. One of the first things Equinox did on wining Citadel was to see off Australian management, including the pioneer of the Saudi experiment, CEO
Ines Scotland
. It widely held that Jabal Sayid would be a working mine if she had been allowed continued stewardship of the project.